177D(1)
This Part applies to a scheme if it would be concluded (having regard to the matters in subsection (2)) that the person, or one of the persons, who entered into or carried out the scheme or any part of the scheme did so for the purpose of:

(a)
enabling a taxpayer (a
relevant taxpayer) to obtain a tax benefit in connection with the scheme; or

(b)
enabling the relevant taxpayer and another taxpayer (or other taxpayers) each to obtain a tax benefit in connection with the scheme;

whether or not that person who entered into or carried out the scheme or any part of the scheme is the relevant taxpayer or is the other taxpayer or one of the other taxpayers.

Have regard to certain matters

177D(2)
For the purpose of subsection (1), have regard to the following matters:

(a)
the manner in which the scheme was entered into or carried out;

(b)
the form and substance of the scheme;

(c)
the time at which the scheme was entered into and the length of the period during which the scheme was carried out;

(d)
the result in relation to the operation of this Act that, but for this Part, would be achieved by the scheme;

(e)
any change in the financial position of the relevant taxpayer that has resulted, will result, or may reasonably be expected to result, from the scheme;

(f)
any change in the financial position of any person who has, or has had, any connection (whether of a business, family or other nature) with the relevant taxpayer, being a change that has resulted, will result or may reasonably be expected to result, from the scheme;

(g)
any other consequence for the relevant taxpayer, or for any person referred to in paragraph (f), of the scheme having been entered into or carried out;

(h)
the nature of any connection (whether of a business, family or other nature) between the relevant taxpayer and any person referred to in paragraph (f).

Note:

Section 960-255 of the Income Tax Assessment Act 1997 may be relevant to determining family relationships for the purposes of paragraphs (f) and (h).

Tax benefit

177D(3)
Despite subsection (1), this Part applies to the scheme only if the relevant taxpayer has obtained, or would but for section 177F obtain, a tax benefit in connection with the scheme.
When schemes entered into etc.

177D(4)
Despite subsection (1), this Part applies to the scheme only if:

(a)
the scheme has been or is entered into after 27 May 1981; or

(b)
the scheme has been or is carried out or commenced to be carried out after that day (and is not a scheme that was entered into on or before that day).
Schemes outside Australia

177D(5)
This section applies whether or not the scheme has been or is entered into or carried out in Australia or outside Australia or partly in Australia and partly outside Australia.

S 177D substituted by No 101 of 2013, s 3 and Sch 1 item 5, applicable in relation to all schemes except schemes that were entered into, or that were commenced to be carried out, on or before 15 November 2012. S 177D formerly read:

SECTION 177D SCHEMES TO WHICH PART APPLIES
177D
This Part applies to any scheme that has been or is entered into after 27 May 1981, and to any scheme that has been or is carried out or commenced to be carried out after that date (other than a scheme that was entered into on or before that date), whether the scheme has been or is entered into or carried out in Australia or outside Australia or partly in Australia and partly outside Australia, where:

(a)
a taxpayer (in this section referred to as the
relevant taxpayer) has obtained, or would but for section 177F obtain, a tax benefit in connection with the scheme; and

(b)
having regard to:

(i)
the manner in which the scheme was entered into or carried out;

(ii)
the form and substance of the scheme;

(iii)
the time at which the scheme was entered into and the length of the period during which the scheme was carried out;

(iv)
the result in relation to the operation of this Act that, but for this Part, would be achieved by the scheme;

(v)
any change in the financial position of the relevant taxpayer that has resulted, will result, or may reasonably be expected to result, from the scheme;

(vi)
any change in the financial position of any person who has, or has had, any connection (whether of a business, family or other nature) with the relevant taxpayer, being a change that has resulted, will result or may reasonably be expected to result, from the scheme;

(vii)
any other consequence for the relevant taxpayer, or for any person referred to in subparagraph (vi), of the scheme having been entered into or carried out; and

(viii)
the nature of any connection (whether of a business, family or other nature) between the relevant taxpayer and any person referred to in subparagraph (vi);

it would be concluded that the person, or one of the persons, who entered into or carried out the scheme or any part of the scheme did so for the purpose of enabling the relevant taxpayer to obtain a tax benefit in connection with the scheme or of enabling the relevant taxpayer and another taxpayer or other taxpayers each to obtain a tax benefit in connection with the scheme (whether or not that person who entered into or carried out the scheme or any part of the scheme is the relevant taxpayer or is the other taxpayer or one of the other taxpayers).

Note:

Section 960-255 of the Income Tax Assessment Act 1997 may be relevant to determining family relationships for the purposes of subparagraphs (b)(vi) and (viii).

S 177D amended by No 144 of 2008, s 3 and Sch 14 item 32, by inserting the note at the end, applicable in relation to the 2009-2010 year of income and later years of income.

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